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Yesterday evening I had occasion to participate in what the Chicago lawyers' chapter of the Federalist Society calls a "tavern debate," which as best as I remember is a cross between the Yale or Oxford Union and some version of Chris Matthews' Hardball. It was raucous and fun. It was also a surprise unless I didn't read the e-mail invitation closely. I was under the impression that I had been invited to speak on the topic "Gays Have Every Right To Marry." Now, given my brief-writing, this would have been, as they say, "off-brief," but I thought that was the challenge, and I was prepared to defend the California Supreme Court, or at least four of the members thereof, with zeal. Instead, to my surprise I learned shortly before, though after some delightful merlot, that I was instead to defend the negative of the proposition against my friend and truly gifted constitutional law colleague Dale Carpenter, who holds the Julius Davis professorship at the University of Minnesota.
It is apparently in the tradition of the tavern debate to keep the tavern open throughout, which I admit does seem to give everyone's argument a greater power and salience than more, well, sober settings. And it is perhaps for that reason, when it came time to have the house divide to determine the prevailing position, a majority of those present and still able to walk came to my side. In short, I won-that is, the side in opposition to the resolve "gays have every right to marry."
Beyond the bottle and my bombast, there may be many reasons for my "triumph" (I am a native Chicagoan, Northwestern grad, and, of course, Cub fan), but as I see it, professor Carpenter had the better case and deserved the prize or the fern or whatever it was we had decided to carry away from the Tower Club in remembrance.
Seriously, Dale made his usual eloquent and poignant plea for-and here is where it hooks into the provocative Yoshino-Gerken-Tribe dialogue on liberty vs. equality-the acknowledgement of same-sex marriage. Anticipating his audience far better than I even grasped the format, he made what he called a Burkean case for same-sex marriage-the case that including persons of gay, lesbian, bisexual, and transgender orientations is preservative of the essence of culture, including those aspects of it that depend upon the channeling of sexual intimacy for purposes of civil order and the raising and upbringing of children. Dale's case is more powerful than the lengthy opinion of the California Supreme Court because he deliberately chose to eschew legalisms, and he speaks with the heartfelt and earnest poignancy of a gay man.
Bracketing the legal arguments also was a strategic debate move since it was an attempt (unsuccessful) to deprive me of the separation of powers argument which is of natural appeal to us Federalistas, which is what we were calling ourselves upon adjourning to the post-tavern debate tavern across North Wacker Drive (no pun intended).
My own tack was to argue strongly in favor of the recognition of LGBT as within the humanity created equal in the Declaration challenging the overly narrow conception of originalism most often associated with Justice Scalia, while insisting the true Burkean would preserve traditional marriage to maintain the linkage between marriage and procreation, avoid the uncertainties of single gender effects on child rearing, and taking respectful and realistic account of the innumerable, and undiscussed by the California Supremes, difficulties of accommodating religious freedom subsequent to the legal and cultural acceptance of same-sex marriage.
Dale made the appropriate reply challenging the connection between a recognition of same-sex marriage and either the national or global decline in fertility-which threatens the economies of Europe and even our own if it was not more directly threatened by the fiscally irresponsible and unjustifiable war-related expenditures of our incumbent president. Here, Dale drew upon Gerken's equality argument with a gift of words that succinctly came down to "what else would you do with us?" Professor Carpenter made, as I say, what should have been, as a matter of justice, the winning summation and argument.
Except that, I made reference to Eric Posner's earlier post responding to my lawyer daughter's earlier expressed suggestion that the U.S. subsidize child-having and -rearing more akin to that of France. Eric (perhaps merely for the sake of intellectual sparring) labeled our insistence that marriage and procreation stay linked and honored as "a stodgy bourgeois construct designed to channel the revolutionary energy of sexuality into diaper changing and car pooling." Such talk, even with the benefit of spirit-based enhancement, does not sit well with a Midwestern crowd, and the reason I believe is because it attempts to transform the equality claim into a far more troubling and problematic liberty claim a la Kenji.
It dawns on the most inebriated assembly that while in absolute numbers acknowledging same-sex marriage does not account for the global population deficit, it does-if thought of in liberty terms-stand as precedent for the separation of marriage from natural procreation. Asexual procreation at present seems merely benign since it exists as an expensive and cumbersome (and far from uniformly successful) practice, but the literature on artificial wombs and the genetic manipulation of intelligence shoots right through academic debates on liberty vs. equality because it conjures up all manner of not unthinkable (unfortunately) scenarios of the wealthy acquisition of unnatural reproductive means to advance the interests of elites through a libertarian exercise that would destroy all hope of democratic equality.
One sure way for Dale's winning equality argument to lose its footing would be to take up the defense of a liberty to engage in the genetic engineering of children. That move would take him from his own created humanity worthy of the greatest respect to the crass eugenic observation of Oliver Wendell Holmes that "three generations of imbeciles are enough" in Buck v. Bell sustaining the forced sterilization of the mentally handicapped.
In a depopulating world, some predict that there will be an alliance of feminism and eugenics to resist any pressure to sustain an aging and dying culture. Stanley Kurtz makes note that "alarmed by the relative decline of the elites, Teddy Roosevelt urged upper-class women to have more children." Even progressives at that point started to question women's rights. The same, I suggest, is the fate of same-sex equality if it allies itself with the "genetic engineering and use of modified gametes," as John Howard commenting on the earlier liberty-equality colloquy put it in the Fray. Roosevelt's population concerns were blunted by birth-control pioneer Margaret Sanger who prescribed, like Holmes, not that the elite get pregnant, but the suppression of the births of the unfit, or as she described the mentally disabled, "the insane and the blemished."
My friend Larry Tribe writes that "the very things about the language of universalism that makes the ‘liberty' strategy appealing to some (like [him]) no doubt makes it frightening to others." You bet, but that doesn't mean that some things aren't worth being frightened about-and a universal right to access to genetically engineered children is to me, and all lovers of created equality I would think, in that very category. I share with professor Tribe the audacious hope of President Obama pursuing greater claims of equality when the distinctions of the past have been shown to lack reason and to indulge the language of rights when such is universally appealing. I respectfully suggest that any thinking out there-which I know professor Tribe would separate himself from-that is conjuring up a new superman should universally repulse, rather than appeal.
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Memo to the New York governor:
Re: Your same-sex juggernaut.
Regarding your decree for New York to be same-sex-marriage friendly—my, you are quick—too quick. Thanks to thoughtful comments received to my earlier expressed concerns about your action, let me remind readers upfront that I filed on the side of traditional marriage in the California cases. While the California opinion is long (more than 170 pages and thoughtful in many ways, it managed not to fully discuss either the procreative importance or religious significance of the traditional family). But unless the court reconsiders, which I doubt, or the people overturn by constitutional amendment, which is too close to call, California by its regular legal process is marching ahead—hopefully—in a way that strengthens community and marriage and, most importantly, families upon which so much depends.
Your executive memorandum by these terms seems imprudent. Here's why:
Article IV of the U.S. Constitution provides that "full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other state." It has been a much-debated question among legal scholars as to what exactly it means when one state—say, California—approves something highly controversial like same-sex marriage when another state—oh, say, New York—has strongly disapproved of the same issue in its highest court. You and your legal counsel have not, in my judgment, fully addressed either the meaning of Article IV against the backdrop of New York's public policy in your hasty directive, and, by your precipitous action, perhaps damaged your own position.
Of course, as a matter of precedent, I know you got zero help from Massachusetts. A quirky old Massachusetts law limited its same-sex ruling to itself—that is, residents of Massachusetts. Imagine stodgy old Massachusetts approving same-sex marriage, but then refusing to marry nonresidents.
California by contrast is made up of people who arrived here yesterday, so we are not that picky. No waiting periods, no residency requirement, and since we're not much bothered if others don't approve of us, no reciprocity required, either—that is, we're willing to issue same-sex licenses whether other states think them valid or not. California is thus hanging 10 on this surfboard all alone, so it's good of you to send us some New Yorkers to keep us company. But here's a question for you, governor, as you are welcoming back home your residents returning from Disneyland: Does your executive pronouncement also authorize New Yorkers who don't have the gas money for Route 66 or airfare to fly cross-country to Laguna Beach to get married in Massachusetts or not?
Oh, wait, that's really a question for the people of Massachusetts; indeed, the Legislature of Massachusetts. The Legislature actually still makes the laws in the Bay State. To someone, such as yourself, with rapid-fire executive pen, lawmaking by lawmakers may seem quaint, even retro. And get this, they are so into that John Adams HBO special, the tricorn-hatters in Massachusetts even have courts working out the kinky ambiguities in statutes. And kinks there can be, like whether the nonavailability of same-sex marriage in Massachusetts to nonresidents turns on whether the nonresident's state constitution does not mandate same-sex marriage (which is the view of the New York Court of Appeals about the New York constitution) or your rather unprecedented, if not unauthorized, order that out-of-state same-sex marriages simply be treated as valid. A single lower-court benefits decision that was not appealed is too slender a foundation for remaking the public policy of the state as it has existed, well, since the state has existed, and as recently confirmed by your high court.
At a minimum, you'll admit it's a question worthy of the final Jeopardy round. Oh, not perhaps for someone like yourself, governor, whose clairvoyant almost paranormal executive decision-making is, as we say in Malibu, way cool. By the way, just curious, but how exactly did you know to instruct New York on the need to handle California same-sex marriages the day before the case was decided?
But don't get us wrong—out here in "Cal-ee-for-nee-a," we like our action-figure governor (you two should "do lunch"), and of course, we're thrilled to be thrust into even an off-Broadway spotlight. We may complain about paparazzi and have Ken Starr drafting ordinances to keep ‘em edgy, but we actually crave the attention. (Who knew, right?)
This "speed racer" disposition of yours is particularly generous since the same-sex marriage licenses we're minting today may not be worth a postage stamp after next November if the people of California decide to amend the constitution and overturn our Supreme Court. As I say, the outcome of that is uncertain and worthy of intelligent debate, and so, as busy as you are making, interpreting, and enforcing laws—you might well hesitate on our ambivalent account. Moreover, governor, a few of your cranky bureaucrats may snipe at you for the massive administrative headache you may have just created in matters of tax, child custody, divorce, insurance, and such by giving full faith and credit to that which California may or may not decide in a few months is au passé. Trends are like that out here, so do try to keep up.
Or better yet, why not wait until the people of New York themselves can chat it up with those elected representatives in Albany? Way boring, I know—no carpe diem, no 15 minutes of fame. Nope, just listening to the people and governing in accordance with their usually sound inclinations. This won't get you Oprah—and definitely not Ellen. It will give you the satisfaction, however, that you kept your oath.
Sure, the niceties of lawmaking and law interpreting and law enforcing could all be done in your office. If democracy were premised upon efficiency, rather than representation and deliberation, this would be a salutary thing. As it is, Madison had a name for the usurpation of power and its unification in a single hand: tyranny.
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Eric's provocative question whether "within-family reproduction is good in itself" is essentially asking whether the fall in fertility among existing Americans is fungible with the fecundity of recent immigrants from other nations and cultures. Without indulging too much American exceptionalism, I do think there is a distinctive American culture that is lost by that trade. Giving expression to that distinctiveness would violate every principle of blog writing, but for shorthand, let's just say one finds evidence of it in everything from the natural law premises of this Republic's Declaration of Independence to the great success of the recent John Adams HBO special to the content of any presidential aspirant's stump speech. These things begin to capture some of what is lost by supposing immigration to be a perfect substitute for our modest replacement rate.
Thus the significance of sustaining the marital family is far more than a favorable worker-retiree ratio, though that would be helpful in itself to avoid the coming Social Security bankruptcy attributable to both the population decline, and more immediately, the extreme war-related fiscal irresponsibility of the incumbent president. I concede Eric's point that it is more efficient to have people save for their own retirement and avoid transfer payments, but that is not the economic structure we have.
Eric's pro-immigration sentiment expressed within the sentence "paying people to have more babies doesn't seem reasonable when there are so many millions clamoring to get in" does earn two cheers from me, but it not only understates the uniqueness of American culture, it also misses entirely that a marital family is indeed worth preserving and far more than a "bourgeois construct designed to channel the revolutionary energy of sexuality into diaper changing and carpool planning."
In its traditional form, marriage transforms by covenant the emotional and sexual attraction of two individuals into a lasting relationship (AEI's Michael Novak reports modern marriages have a 66 percent success rate) capable of sharing intimate personal goods as well as serving larger social purposes. That the California Supreme Court declares these same personal goods to be within a same-sex relationship has to date been the public debate. To leap from the acceptance of the inclusionary California ruling to the dismissal of marriage as a "bourgeois construct" is a far more revolutionary notion that I suggest Eric may wish to rethink by simply indulging the thought experiment of how uninviting a world without the civilizing efforts of marital family would be. When the marital union is strong, it is also stable, and in this atmosphere of stability children are welcomed and reared to be responsible, healthy, and well-educated citizens. Who exactly undertakes this responsibility under Eric's model?
Intra-marital union or intra-family, freedom is acknowledged in exchange for the faithful performance by the family of social expectations or obligations toward the education and care of family members. The public sovereign respects the private marital union so long as it sustains itself and yields new individuals with sufficient qualities to maintain the ongoing functions of the community as a whole. In short, it is anticipated that those raised intra-family have received such direction that, upon emancipation and emergence into the public community as free and independent citizens, they will live productive lives and respect the equal dignity of human beings.
Finally, as for "the planet chok[ing] on the greenhouse-gas emissions of the multiplying hordes," this neo-Malthusian supposition is empirically misdirected when world population growth has declined by more than 40 percent since the late 1960s.
Worried about greenhouse gases? It would be far more direct, to use Eric's terminology, to require automakers (and fuel-inefficient, consuming auto-buyers) to pay for the actual value of the air resources their products consume than to undermine the foundation of the civilized world as we know it.
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Holidays like Memorial Day are times for families to gather, and my married daughter, Katherine, a deputy county counsel for a Southern California county government, shared her reflections as a citizen and spouse upon the California Supreme Court's recent decision in favor of same-sex marriage.
Katherine astutely observed that one salutary byproduct of the decision would be to prompt the government to re-examine whether there are adequate existing incentives to have and rear children. Drawing comparison with practices in Europe, Katherine speculated that existing, marriage benefits in the United States might be better directed to and augmented for those same-sex or traditional couples who willingly assume the opportunity costs associated with having and rearing children, as opposed to those who don't.
As an aside, while we did not undertake a macroassessment of the dollar value of direct U.S. "marriage benefits," they do not seem to be overwhelming; for example, if a couple has disparate incomes, filing jointly is usually a benefit, but because of tax brackets, couples with high incomes may still be penalized; there is also a spousal exemption from estate tax, and of course, modest Social Security and Medicare spousal benefits. The benefits available to married employees (e.g., health and life insurance and retirement plan contributions) and the nontaxability or favored tax treatment of those benefits may be the most significant indirect economic benefit for married couples with or without children. There are few government or employer child allowances for children comparable to those found in other countries (see below).
It is well-known that falling birthrates threaten to undermine the economies and social stability across much of an aging Europe. Katherine's father (me) thought procreation one of the most plausible state reasons for skepticism toward a public affirmation of same-sex marriage. The argument had a rational but not compelling basis because of the obvious imperfect fit between marriage and procreation (e.g., elderly and infertile couples). The fact that our state Supreme Court has now reached the conclusion that a rational basis is insufficient to justify the traditional definition of marriage does not mean that the state interest in fertility and responsible parenting has disappeared.
Since this concern is even greater in Europe, it is reasonable, as Katherine counseled, to inquire as to thinking and experience in foreign venue. Consider: France. Until recently, French fertility rates had the same downward slope as the rest of Eastern and Western Europe, but today its fertility rates are increasing. In fact, France now has the second-highest fertility rate in Europe—1.94 children born per woman, exceeded slightly by Ireland's rate of 1.99. The U.S. fertility rate, by comparison, is 2.01 children. This has made France the subject of considerable study by officials from Japan, Thailand, and Germany, all of which are facing the prospect of dropping off a steeper demographic cliff.
What accounts for France's increased population? While it might be the romantic nature of Frenchmen and the historic connection to Catholicism, it is more traceable to some rather substantial subsidies for children and families paid by the French government. For example, the government provides reimbursement for child-care costs for mothers of toddlers up to the age of 3 and free child care from age 3 to kindergarten. The Washington Post reported that a new law "provides greater maternity leave benefits, tax credits and other incentives for families who have a third child. During a year-long leave after the birth of the third child, mothers will receive $960 a month from the government, twice the allowance for the second child."
While some of these allowances are progressive and aimed at low-income families, many are available to all, recognition that France better understands than the United States how it is discriminatory to make women choose between career and motherhood. Moreover, "French law [allows women] to opt not to work or to work part time until her child is 3 years old—and her full-time job will be guaranteed when she returns."
In sum, the French tax and economic system provides the following benefits for families:
- generous child allowances
- subsidized preschool and daycare
- substantial maternity leave and right of return
- tax benefits for transportation and some family purchases
- subsidies for in-home care
- government-provided recreation programs
- a private market that responds with services and hours of operation aimed at meeting working family needs, like, for example, pediatricians who make home visits
- the well-known French extended (36 paid day) vacation.
So, the next time you hear some U.S. official boasting about "freedom fries" rather than "French fries," feel free to tell them they have some ‘splainin to do. America and France may both extol family values, but France (and a number of other European countries as well) also values family in the way hard-headed economists understand.
In significant part, avoiding stigmatic harm to same-sex families prompted the inclusionary ruling by the California Supreme Court. In the court's words, "the substantive right of two adults who share a loving relationship to join together to establish an officially recognized family of their own—and, if the couple chooses, to raise children within that family—constitutes a vitally important attribute of the fundamental interest in liberty and personal autonomy that the California Constitution secures to all persons for the benefit of both the individual and society."
The new importance of not drawing marital distinctions on the basis of sexual orientation should not obscure the equal importance of specially acknowledging the good to society that natural or adoptive parents provide—whatever orientation prompted them to come together.
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Convictions contributors Dahlia Lithwick and Doug Kmiec took to the airwaves today to discuss the California gay-marriage decision on NPR's On Point program. The show also included Crystal Carreon from the Sacramento Bee; Geoff Kors, executive director of Equality California, a gay rights advocacy group; and Brian Brown, executive director for the California chapter of the National Organization for Marriage. The segment is available online, and you can read more here from last week's discussion in Slate.
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Professor Weisberg's thoughtful post responding to Megyn Kelly of The O'Reilly Factor on the Fox News Channel nicely illustrates an overlooked means by which Sen. Obama—seeking as our next president to build bridges and unbuild walls (disclosure: I endorsed the senator and give him lots of advice which I hope is helpful to him)—might defuse some of the acrimony that exists surrounding topics such as abortion and same-sex marriage.
While it was Kelly's thesis that it is activist and not in keeping with principles of federalism for state judges to trump the people, it was professor Weisberg's nice counterpoint that as in many claims of activism, whether one favors the state court over the people (Gov. Schwarzenegger's position in opposition to an anticipated November initiative that would overturn the same-sex marriage case) or vice versa depends on whose ox is being gored. It is not really possible to say that one is more in keeping with federalism than another.
But that is not to say that the distinction between the state and the people is unimportant. The phrasing in the 10th Amendment speaks of the "reserved [unenumerated power] to the states respectively, or to the people" for a reason. The phraseology illustrates that while the concept of federalism is typically associated with what is federal (viz. national) vs. what is local, the separate reservation in the 10th Amendment allows the people of a state to deny a delegation of their unenumerated reserved power to their state legislature. Indeed, the people may decide that no government entity—including themselves by initiative or referendum—should take a position on a given subject that has been so reserved.
This avenue for complete neutrality presents a possible common ground to defuse some of the rancor over abortion and same-sex marriage. Theoretically, it would be possible to declare both subjects as presently beyond the competence of government.
The California Supreme Court catches a bit of a glimmer of the potential for using neutrality as a reconciling device when it suggests that the California assembly might decide not to ascribe the sacred word marriage to any state license whether given to a heterosexual or homosexual couple. Rather, California state licenses might be called "civil unions" or "enduring unions," with the sacred affirmation of marriage being entirely reserved to nongovernmental actors to allocate in accordance with particular their religious traditions. Were California to follow that course, religious bodies would presumably then have less basis to argue that the civil law was affirming or honoring a relationship that cuts deeply against the revealed beliefs of those religions.
The same could be true with regard to abortion. Here, the formulation would mean that if Roe were overturned, the matter would not be returned to the states or to the people in their initiative/referenda legislative capacity but would be reserved to the people solely within their own church and family structures. It would be within those nongovernmental communities that the people would decide whether abortion is a matter of individual liberty or the taking of human life. Obviously, as a practical matter, this would leave the abortion decision to a woman and her doctor as Roe itself does, but critically, the law would not then be giving any civil-law approval or constitutional edge favoring one side over the other.
Would such reallocation of authority to the people outside of government be more accommodating of those who presently raise religious objection to abortion? Obviously, it does not put the full force of law behind stopping or curtailing the practice, but then it does not endorse it, either. The law would be entirely silent, leaving the people in their individually and voluntarily chosen communities to decide matters for themselves in accordance with their respective beliefs. That this would not be mere window dressing may be illustrated in the Catholic Church's own teaching, which, of course, is strongly against abortion. While the most preferred Catholic position is a construction of the Constitution that affirms the unalienable right to life for all persons from conception onward in the Declaration of Independence, the specific instruction of the church merely calls for the practice not to be "recognized and respected by civil society and the political authority," and admonishes its own believers to not exercise their free will to procure (or aid the procurement) of abortion.
The possibility of reserving sensitive questions over which the culture is deeply divided, and indeed, with respect to which there is insufficient consensus to justify either a positive law or judicial determination has more salience and potential for bridging even profound disagreement than the obscure 1791 formulation of states rights in the 10th Amendment may at first reveal.
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Robert Weisberg, of Stanford Law School, offers a guest post:
Dahlia Lithwick’s latest column about the California marriage decision shows how the availability of the "activism” trope is more than the intelligence (or other virtues like rationality, sanity, or honesty) of those decrying it can bear. I would add a twist: the conflation of concerns about separation of powers and federalism. On the Bill O’Reilly show the night of the decision, Fox New jurisprude Megyn Kelly first offered a fairly generic denunciation of the decision as matter of constitutional jurisprudence. Then, when asked (by O’Reilly!) whether the decision at least merited respect under the principle of states’ rights (O’Reilly also noted that the state court was mostly Republican appointees), Kelly got agitated and fumed that states’ rights are not about the rights of state judges but the rights of the people. Whatever the mens rea of Ms. Kelly’s rant (see challenged virtues, above), it wonderfully illustrates the power and plasticity of the activism trope. And the focus on California is especially ironic. Here in the Golden State we have a ruling that may last just a few months, given the voters’ penchant for—indeed their addiction to—direct democracy.
We do have an elected legislature here, but California voters love to do the legislative work themselves (both the restoration of the death penalty in the 1970s and the three-strikes law in the 1990s were passed the old-fashioned way in Sacramento but then got enhanced via initiative within one year), and the 50 percent rule applies to initiatives that change the Constitution as well. It is a state where the people seem quite willing to kick Supreme Court justices out of office (see Bird, Reynoso, Grodin over the death penalty in 1986) and, of course, find it easy to kick out a governor for no particular reason except dislike and mild buyers’ remorse. So in the separation-of-powers arena, the fourth branch of self-declared people’s sentiment seems quite able to take care of itself.
Of course, we could also put the problem with this reading of states’ rights in more abstract terms, noting, for example, that the presence of both the Ninth and 10th Amendments in the federal Bill of Rights suggests that in 1791 there was a big difference seen between the autonomy of states and at least one, admittedly vague, version of a residual power of the people. The venerable provenance of federalism in the 18th century is a strange bedfellow to a concern over the phenomenon of judicial review—which was hardly on the minds of the Framers, especially at the state level.
In any event, imagine that the D.C. gun ban had been enacted in a state; the U.S. Supreme Court had upheld it on broad collective rights grounds (contra the likely outcome in Heller), and the state Supreme Court had then struck it down as a violation of the state’s right-to-bear-arms clause: Would the chance of that decision being denounced as activist by pro-gun groups have exceeded zero, or the chance of those groups forbearing from proclaiming it as a vindication of states’ rights less than 100 percent?
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... there is a Republican core to yesterday's California marriage decision. Not only were three of the four justices in the majority Republican appointees, but they were appointed by either George Deukmejian or Pete Wilson, GOP governors not known for liberal tendencies. (The sole appointee of Gov. Arnold Schwarzenegger was among the three justices, all Republicans, in dissent.)
It should also be noted that all seven have stood election since their appointments. Voters reconfirmed all of them, by margins of 69 percent or higher. That this court voted as it did knowing it must seek ballot approval now and again is nothing to sniff at—this is the same electorate that in 1986 recalled the state chief justice and two associate justices, following a campaign waged by Deukmejian.
Though it is tempting to suggest that the Grand, Old Party is returning to a tradition of privacy vis-à-vis the state—let's not forget that Republican appointees represented five of the seven U.S. Supreme Court Justices in the majority in Roe v. Wade (1973)—it may be premature to make such a claim. Perhaps the ruling says more about "living constitutionalism." Might it be that changes in popular attitudes toward marriage equality helped to embolden four California justices to enforce a rule that seemed to them compelled by proper interpretation of the applicable law, California's Constitution?
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A fairly remarkable fact that has not gotten the attention it deserves:
If I'm not mistaken, of the eight justices in the majorities in Goodridge (Massachusetts) and In re Marriage Cases (California), seven of them are Republican appointees.
And the current Republican governor of California was quick out of the box to say that he respects the court's opinion and does not support the initiative to overturn it this November.
I'll leave it to others to discuss what, if anything, this says about the past or future of the GOP.
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As a matter of law, history, social policy, and faith, it is my view as articulated in a brief I helped draft in the California cases that marriage is properly reserved to a man and a woman. In other words, I lost. That said, the California Supreme Court decision in favor of same-sex marriage in both the majority and dissent is written in reasoned and intelligent voices.
It would be especially worthwhile if the California opinion did not immediately trigger the predictable responses by the contending sides or extended gloating or criticism by those pursuing the presidency. The common good will not be advantaged by either gay euphoria on one side or straight predictions of moral disintegration. Nor will the usual hand-wringing about judicial activism be of much utility.
Sen. Obama might take special care in his assessment of the opinion. He, like the court majority, I am certain believes extending affirmation to same-sex marriage ultimately honors that venerable institution. As such, it would be prudent for Sen. Obama and supporters of same-sex marriage to note that, for the most part, those who opposed that affirmation did so not out of acrimony or dislike, but out of a like appreciation for the family as an irreplaceable cultural building block and often sincere religious belief that deserves respect and accommodation.
So, what did the opinion actually do?
Something Old—Marriage by Any Other Name ...
California's decision to affirm same-sex marriage arguably will not have a dramatic impact within the state itself since the state had already been so generous in its domestic-partnership provisions and in eliminating virtually all forms of employment and housing discrimination. Indeed, the most noticeable impact may be in the usage of the word marriage, though the court puts it more sensitively: "Whether or not the name ‘marriage,' in the abstract, is considered a core element of the state constitutional right to marry, one of the core elements of this fundamental right is the right of same-sex couples to have their official family relationship accorded the same dignity, respect and stature as that accorded to all other officially recognized family relationships." In short, whatever terminology the state fixes upon, it must be extended to same-sex and traditional marriage alike.
Something Borrowed
Perhaps it would be best if the state would forgo using the terminology of marriage altogether and leave that to religious bodies where the institution is accepted as having divine origin and is associated with sacrament or other blessing. In that event, the state license for everyone could be called "civil union" or, as the court suggested, "enduring union," which indeed is the hope of every couple and the genuine work of life-long friendship.
Something New
Analytically, the court is at its strongest in pointing out how the usage of the term marriage for opposite-sex couples exclusively can stigmatize same-sex couples. The court makes an analogy to the separate but equal decisions that preceded Brown v. Board of Education, where, of course, the minority schools were never quite equal. The court writes: "[P]articularly in light of the historic disparagement of and the discrimination against gay persons, there is a very significant risk that retaining a distinction in nomenclature with regard to this most fundamental of relationships ... will cause the new parallel institution that has been made available to those couples to be viewed as of lesser stature than marriage, and in effect, as a mark of second-class citizenship." Poignantly, the court gives emphasis to how the disparity may affect children of gay couples and how privacy can be invaded then in numerous everyday social, employment, and governmental settings in which the individual is asked whether he or she is married or single. An individual who is a domestic partner and who accurately responds to the question for disclosing that status will functionally be disclosing, said the court, his or her homosexual orientation even if that person would not want to make such disclosure in that circumstance, and it is totally irrelevant to the setting of the question.
This is a nice point. It might have been made stronger had the court observed that nomenclature that does not occasion prying into the sexual choices of persons also has the byproduct of not aggravating opposite-sex couples or individuals with explicit sexual identification or discussion of sexual orientation that often seems, and is, out of place in workplace, school, and other public settings.
So, What's the Harm in Same-Sex Marriage?
It is often asked, as Marty's helpful post does, how the acknowledgment of same-sex marriage harms marriage between a man and a woman. The inability to give a simple, secular answer to this explains the California victory in favor of same-sex marriage more than the reasoning of the opinion. That doesn't mean there is not an answer. There is a religious answer, and it is anchored in the creation story recorded in the book of Genesis.
The religious answer has a secular side, but it is less articulable. Traditional marriage has been accepted without argument for so long that the words custom and history substitute for analysis. When a more searching inquiry is made, it is often related to the genuine belief that the institution of marriage and associated natural procreation should be (and has been for millenniums) interrelated and very much worth preserving. The story of the declining populations and cultures of Western Europe is debated but troubling. No one wishes the same for the United States, though it is hard to deny that marriages are occurring later and with less frequency (with a con-commitant rise in cohabitation and its various adverse instabilities and risks for children). A smaller youthful population with a sizable graying demographic has many negative economic and social consequences manifest in everything from what does or does not get accomplished in schools to the coming bankruptcy of the Social Security system to much else that depends on the constant influx of new people, responsibly prepared to take up for the work of citizenship and community.
With that as backdrop, did California actually accomplish anything different than Massachusetts already did several years ago?
Exportable California Licenses Seeding State and Federal Litigation
California's decision is more groundbreaking than that of Massachusetts in two senses: First, Massachusetts decided, for the most part, that its opinion applied only to its own residents. Nonresidents can be married in Massachusetts only if the marriage would not be prohibited in their home states, whereas California has no residency requirement or waiting period, nor does it determine the availability of its own license in relation to whether such license would be permissible elsewhere. Presumably, this will mean a large number of same-sex California licenses being issued to the nonresident visitors, who will then return to sister states requesting recognition of those California licenses. If those requests are denied, litigation similar to that just concluded in California under that state's marriage law will result as well as challenges to state and federal Defense of Marriage Acts.
Sexual Orientation as a Protected Class
Second, the fact that California declared sexual orientation to be a suspect classification will likely put additional pressure on Congress to do the same in the Civil Rights Act. To the extent other state courts follow California's lead, one can anticipate that this state jurisprudence will ultimately come to be reflected in federal jurisprudential thinking as well. Certainly, one can anticipate the decision today being cited as instructive (though clearly not binding, given its exclusive state-law provenance) in challenges to the military's ongoing application of its "don't ask, don't tell" regulation. The end of sexual-orientation discrimination has much to commend it, as again Marty nicely illustrates in his quotation from the opinion, but again, there are interwoven religious beliefs that are not based on stereotype and that do deserve accommodation.
Governor of the People—Well, a Few With Robes at Least
Responding to today's California Supreme Court decision approving same-sex marriage in relation to a November ballot initiative that would declare the opposite, Gov. Arnold Schwarzenegger said:
I respect the court's decision and as governor, I will uphold its ruling. Also, as I have said in the past, I will not support an amendment to the constitution that would overturn this state Supreme Court ruling.
Depending on your perspective, this may or may not be a profile in courage. Gov. Arnold seemingly reasons that it is more important to secure the four votes of the majority of the California Supreme Court than the approval of the 4,160,706 voters, or its 2008 equivalent, who had approved affirming traditional marriage in 2000 in Proposition 22. The governor's thinking seems a wee bit anti-democratic.
Is there a footnote in Active Liberty that explains this new-found gubernatorial respect for the will of the judges? (Sorry, I couldn't resist a little judicial-activist tweaking.)
The Coming Unconstitutional Constitutional Amendment?
In any event, Gov. Schwarzenegger may not be the only person asserting that there can be an unconstitutional constitutional amendment. The language of the proposed initiative on the ballot in November is virtually identical to the provision of the state family code that was today invalidated. Moreover, the signatures given for this initiative were given prior to the court's decision. Certainly a court that is prepared to declare sexual orientation a suspect class and redefine marriage won't be overly shy about questioning whether the wording of a state constitutional amendment initiative was specific enough to overrule an intervening court determination of this magnitude.
But that's assuming the initiative passes. 2008 is not 2004, and the turnout in November for traditional marriage is no sure bet. Voters attracted to Sen. Obama by and large will be pleased by a today's majority opinion and will be of no mind to approve a state initiative reaffirming traditional marriage.
Something Blue—Will the Outliers Then Be Punished?
Should same-sex marriage and nondiscrimination on the basis of sexual orientation become the norm, as Marty speculates, what will be the impact on religious bodies that sacramentally must decline to conduct same-sex marriages or that cannot under existing religious teaching hire homosexual persons for certain positions such as teacher, athletic coach, or the clergy itself? The Supreme Court's jurisprudence on the Free Exercise Clause is presently insufficient to give any shelter to these practices. Practically, will the existence of religiously affiliated institutions be threatened by the denial of tax exemptions or the denial of access to other public programs on the theory that their practices would then violate public policy? These are real questions that have been aggravated by scholarship and judicial decisions that have allowed or advocated the aggressive exclusion of the Boy Scouts following their successful defense of their right of association before the Supreme Court.
Let History Be Our Guide—At Least As It Applies Against Polygamy and Incestuous Marriage.
There is one anomaly that stands out in the opinion's rejection of history and tradition. The California Supreme Court opined that its approval of same-sex marriage "does not mean that this constitutional right similarly must be understood to extend to polygamists or incestuous relationships." But why not? In rejecting the state's defense of traditional marriage, the court found the historical support for traditional marriage to be of little purchase. Apparently, with respect to polygamy and incest, history counts for a lot. The court asserts that "although the historic disparagement of the discrimination against gay individuals and gay couples clearly is no longer constitutionally permissible, the state continues to have a strong and adequate justification for refusing to officially sanction polygamous or incestuous relationships because of their potentially detrimental effect on a sound family environment."
I agree, but wasn't that exactly the state's argument in defense of traditional marriage?
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Today's California Supreme Court decision is certainly momentous and worthy of celebration, for obvious reasons. It will, I think, come to be seen as part of the grand tradition of that court, as exemplified in its bold 1948 decision in Perez v. Sharp, which prompted numerous states to abandon their anti-miscegenation laws, eventually leading to Loving v. Virginia. But wholly apart from the particular holding on same-sex marriage—which is plenty important in and of itself—it strikes me that the most significant legal development in the court's decision is that it is (to my knowledge) the first time any state or federal court of last resort has held that discrimination on the basis of sexual orientation is suspect and thus subject to strict scrutiny under a constitutional equal-protection clause. See Pages 95-101 of the majority opinion.
There is a strong argument, I think, that the particular form of discrimination at issue here would be invalid even if viewed under a more forgiving "rational basis" lens, because there is no noninvidious, legitimate reason for restricting "marriage" to single-sex couples—which was in effect the holding of the Massachusetts court in Goodridge. (See Pages 20-22 of this brief.)
But long after the question of same-sex marriage is considered by other courts, legislatures, and popular referenda—indeed, long after same-sex marriage becomes the norm rather than the exception in the various states—the court's holding today that all discrimination against gays and lesbians is constitutionally suspect is apt to have profound ripple effects across a wide range of different legal contexts. Here's the key, landmark holding:
There is no persuasive basis for applying to statutes that classify persons on the basis of the suspect classification of sexual orientation a standard less rigorous than that applied to statutes that classify on the basis of the suspect classifications of gender, race, or religion. Because sexual orientation, like gender, race, or religion, is a characteristic that frequently has been the basis for biased and improperly stereotypical treatment and that generally bears no relation to an individual’s ability to perform or contribute to society, it is appropriate for courts to evaluate with great care and with considerable skepticism any statute that embodies such a classification. The strict scrutiny standard therefore is applicable to statutes that impose differential treatment on the basis of sexual orientation.
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The California Supreme Court has just announced its decision in the gay-marriage cases, finding that the state marriage laws that "exclude same-sex couples from access to the designation of marriage" are unconstitutional. Opinion is here.